275 F.3d 9 (1st Cir.

2001)

UNITED STATES OF AMERICA, Plaintiff, Appellee,

v.
MAR A DEL CARMEN VENTURA-MELENDEZ, Defendant,
Appellant.
No. 01-1400

United States Court of Appeals For the First Circuit

Heard Nov. 7, 2001
Decided December 19, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO. Hon. Juan M. Perez-Gimenez, U.S.
District Judge. Hon. Aida M. Delgado-Colon, U.S. Magistrate
Judge[Copyrighted Material Omitted][Copyrighted Material Omitted]
Linda Backiel, for appellant.
Francis J. Bustamante, Special Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant
U.S. Attorney, Chief, Criminal Division, and Anthony Chavez, Special
Assistant U.S. Attorney, were on brief, for appellee.
Before Torruella, Circuit Judge, Kravitch,* Senior Circuit Judge, and
Lynch, Circuit Judge.
TORRUELLA, Circuit Judge.

Defendant Mara del Carmen Ventura-Melendez ("Ventura" or "defendant")

appeals her conviction for trespassing on a United States military installation.
She asserts numerous grounds for appeal, all of which we find unavailing. We
therefore affirm her conviction.
I. BACKGROUND

Ventura, a native of Vieques, Puerto Rico, was arrested on June 1, 2000 on a

beach in Vieques during a peaceful protest against the Navy's continuing use of

portions of the island for military maneuvers. The beach is part of the Naval
installation at Camp Garca and sits approximately 200 yards from the live
impact area designated for live-fire artillery and bombardment exercises.
Approximately thirty-one people, all of whom were engaged in acts of civil
disobedience, were arrested at the same time and place.
3

Ventura was charged, in a single-count information filed on July 17, 2000, with
violation of 18 U.S.C. 1382. The district court conducted a one-day bench
trial and found Ventura, along with her two co-defendants, guilty of the one
count charged. The district court then sentenced the defendant to one year of
unsupervised probation, with a special condition that she not enter any part of
the Navy's closed base at Camp Garca without permission, and assessed a fine
in the amount of ten dollars.
II. ANALYSIS

The federal trespassing statute under which Ventura was convicted provides, in
relevant part: Whoever, within the jurisdiction of the United States, goes upon
any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station,
or installation, for any purpose prohibited by law or lawful regulation;

...

Shall be fined under this title or imprisoned not more than six months, or both.

18 U.S.C. 1382 (1994). The statute, in essence, prohibits persons from

"enter[ing] military reservations that are closed to them, provided they have
notice or knowledge that their entry is prohibited." United States v. ParrillaBonilla, 648 F.2d 1373, 1378 (1st Cir. 1981).

Ventura argues three basic grounds for appeal. First, she contends that the
district court improperly admitted a "Certificate of Non-Existence of Record"
that purported to show that she was not among those with permission to enter
Camp Garca on the day of her arrest. Second, she argues that the evidence was
insufficient as a matter of law to show that her presence on the beach
constituted entry upon lands reserved by the Navy. Lastly, she argues that the
district court erroneously failed to disqualify Navy personnel from acting as
Special Assistant United States Attorneys. We address each of her appeal
arguments in turn.

A. Admission of the Certificate of Non-Existence of Record

9
10

A. Admission of the Certificate of Non-Existence of Record

Shortly before trial, Ventura filed a motion in limine to exclude from evidence
a Certificate of Non-Existence of Record ("CNER") signed by Lieutenant
Commander Neftal Pagan ("LC Pagan"). The CNER stated that a diligent
search of the records containing the names of those with permission to enter
Camp Garca on the day in question had been conducted, and that the search
revealed no record or entry identifying Ventura. The document was introduced
to show that Ventura was not authorized to be on the property controlled by the
Navy when she was arrested. LC Pagan did not testify at trial. Ventura's motion
to exclude the CNER was denied from the bench on the date of trial, without
opinion. Her objection was renewed and overruled during trial.
1. Application of Rule 803(10)

11

Ventura first disputes whether the district court correctly admitted the CNER in
accordance with Federal Rule of Evidence 803(10). "[A] trial court enjoys
considerable discretion in connection with the admission or exclusion of
evidence." Udemba v. Nicoli, 237 F.3d 8, 15 (1st Cir. 2001). Consequently, we
review the district court's application of Rule 803(10) for an abuse of
discretion. Id.

12

Subject to the limitations of Rule 803(10), an out-of-court statement is

admissible to prove the absence of a public record or entry, even where the
declarant is available as a witness. Evidence admitted pursuant to Rule 803(10)
must meet the following criteria:

13

To prove the absence of a record, report, statement, or data compilation, in any

form, or the nonoccurrence or nonexistence of a matter of which a record,
report, statement, or data compilation, in any form, was regularly made and
preserved by a public office or agency, evidence in the form of a certification in
accordance with rule 902, or testimony, that diligent search failed to disclose
the record, report, statement, or data compilation, or entry.

14

Fed R. Evid. 803(10). Thus, any certificate declaring that a diligent search of
public records failed to disclose a record or entry must comport with Rule 902,
which governs the self-authentication of certain documents. Rule 902 provides,
in relevant part, for the self-authentication of:

15

A document bearing a seal purporting to be that of the United States, or of any

State, district, Commonwealth, territory, or insular possession thereof, or the
Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a

political subdivision, department, officer, or agency thereof, and a signature

purporting to be an attestation or execution.
16

Fed. R. Evid. 902(1).

17

Ventura challenges the district court's admission of the CNER under Rule
803(10) on several grounds. She claims: 1) that the underlying records of those
with permission to enter Camp Garca are not "regularly made and preserved by
a public office or agency"; 2) that the CNER does not bear the proper seal; and
3) that there is no proper "attestation" to the contents of the document. We find
each of these arguments unpersuasive.

18

First, Ventura argues that, in order for the underlying records to be "regularly
made and preserved by a public office or agency," their creation and
maintenance must be legally mandated by statute or regulation. As such,
defendant argues, the Navy's mere practice of making and retaining records of
those with permission to enter Camp Garca does not satisfy the rule. However,
we are unable to find such a limitation in the text of the rule. Had the drafters
of the Rules of Evidence intended such a requirement, they were well aware of
how it could be imposed. Cf. Fed. R. Evid. 803(6)(B) (providing for admission
of records and reports of public offices or agencies setting forth "matters
observed pursuant to duty imposed by law") (emphasis added). The plain text
of the rule mandates only that the underlying records "be regularly made and
preserved by a public office or agency"; we discern no error in the district
court's conclusion that this limitation was satisfied by a proffer of evidence that
logs of those with permission to enter the base are made and gathered on a daily
basis.

19

Second, with regard to the adequacy of the seal, the CNER admitted by the
district court clearly bears the raised seal of the Department of the Navy, a
political subdivision of United States. We believe this satisfies the rule since, "
[u]nder the approach of Rule 902(1), the seal of any executing officer or
custodian will generally suffice." 5 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence 902.03[1], at 902-11 (3d ed. 1997) (footnote
omitted).

20

Third, although LC Pagan did not use the precise term "attest," he stated that he
"certifies and swears" that the contents of the CNER are accurate. The word
"certify" means to "attest to being true," Black's Law Dictionary 124 (7th ed.
1998) (emphasis added), and thus easily supports the requirement of Rule
902(1) that the signature "purport[] to be an attestation." See United States v.

Mateo-Mendez, 215 F.3d 1039, 1043-44 (9th Cir.), cert. denied, 531 U.S. 983
(2000); see also 5 Weinstein's Federal Evidence 902.03[1], at 902-12 ("Rule
902(1) does not specify any particular form of attestation or execution."). We
therefore conclude that the district court was well within its discretion in
determining that the CNER met each of the requirements for admission under
Rule 803(10).1
2. Confrontation Clause
21

Ventura also challenges the admission of the CNER on constitutional grounds,

claiming that she was deprived of rights secured by the Confrontation Clause.
We review the district court's ruling on this constitutional question de novo.
United States v. Rosario-Daz, 202 F.3d 54, 70 (1st Cir. 2000).

22

The Sixth Amendment provides, in relevant part, that "the accused shall enjoy
the right . . . to be confronted with the witnesses against him." U.S. Const.
amend. VI. "The central concern of the Confrontation Clause is to ensure the
reliability of the evidence against a criminal defendant by subjecting it to
rigorous testing in the context of an adversary proceeding before the trier of
fact." Maryland v. Craig, 497 U.S. 836, 845 (1990). When the government
seeks to use an out-of-court statement against the accused, "courts must decide
whether the [Confrontation] Clause permits the government to deny the
accused his usual right to force the declarant 'to submit to cross-examination,
the greatest legal engine ever invented for the discovery of truth.'" Lilly v.
Virginia, 527 U.S. 116, 124 (1999) (plurality opinion) (quoting California v.
Green, 399 U.S. 149, 158 (1970) (footnote and citation omitted)).

23

The hearsay exception and Confrontation Clause inquiries are not coterminous,
"and evidence that is admissible under the former may still be inadmissible
under the latter." United States v. Barone, 114 F.3d 1284, 1299 (1st Cir. 1997).
Nonetheless, the Confrontation Clause and the hearsay rules are both
"generally designed to protect similar values . . . ." Bourjaily v. United States,
483 U.S. 171, 182-83 (1987) (citations and quotations omitted). Thus, an
otherwise admissible out-of-court statement also satisfies the requirements of
the Sixth Amendment "if it bears adequate indicia of reliability." Idaho v.
Wright, 497 U.S. 805, 815 (1990) (internal quotations omitted).

24

Ventura argues that admission of the CNER fails the reliability requirement of
the Confrontation Clause because the evidence neither falls within a "firmly
rooted" hearsay exception, nor contains the particularized indicia of
trustworthiness that would otherwise pass constitutional muster.2 Because we

conclude that the CNER demonstrates "particularized guarantees of

trustworthiness" sufficient to satisfy the Confrontation Clause, see Ohio v.
Roberts, 448 U.S. 56, 66 (1980), we need not decide whether Rule 803(10)
embodies a "firmly rooted" hearsay exception.3
25

The requisite "'particularized guarantees of trustworthiness' must be shown

from the totality of the circumstances." Wright, 497 U.S. at 819. Though
"courts have considerable leeway in their consideration of appropriate factors,"
the relevant circumstances are those "that surround the making of the statement
and that render the declarant particularly worthy of belief," such that "the test of
cross-examination would be of marginal utility." Id. at 819-22. We therefore
eschew the endorsement of a single "mechanical test," id. at 822, and look to
the factors that best assay the reliability of the CNER. In this regard, the
Supreme Court's plurality decision in Dutton v. Evans, 400 U.S. 74 (1970),
provides helpful guidance. In Dutton, the Court articulated a four-prong
analysis for testing the reliability of out-of-court statements, inquiring whether:
1) the statement contained no express assertions about past facts; 2) the
declarant was in a position to have personal knowledge of the matters in the
statement; 3) the possibility that the declarant's statement was founded on
faulty recollection is extremely remote; and 4) the circumstances surrounding
the making of the statement were such that the possibility of misrepresentation
was unlikely. Id. at 88-89.

26

Here, the CNER admitted into evidence by the district court satisfies each of
the Dutton factors. First, the document contains no assertion of past facts;
rather, it relates only to the LC Pagan's contemporaneous search of existing
records. Second, LC Pagan, whose duties include "control of access to the area
known as Camp Garca" and the "authority to grant permission to particular
individuals to enter Camp Garca," was well positioned to have personal
knowledge of the matters in the CNER. Third, because a search of the records
was conducted shortly before the creation of the CNER, the resulting
possibility of faulty recollection is minute. Lastly, the circumstances
surrounding the making of the CNER make misrepresentation unlikely: the
statement is sworn by an officer of the government in the discharge of his
official duties; and the underlying records are created and maintained in a
manner that bespeaks completeness and reliability.

27

Based on the Dutton factors, we conclude that the CNER is entitled to a dignity
and trustworthiness on par with that recognized for out-of-court statements that
fall within "firmly rooted" hearsay exceptions. See Wright, 497 U.S. at 821 ("
[E]vidence possessing 'particularized guarantees of trustworthiness' must be at
least as reliable as evidence admitted under a firmly rooted hearsay exception . .

. .") (citation omitted). Our conclusion is further buttressed by courts that have
determined that other certificates of the absence of a public record or entry have
particularized guarantees of trustworthiness sufficient to satisfy the
Confrontation Clause. See, e.g., United States v. Rith, 164 F.3d 1323, 1336-37
(10th Cir. 1999); United States v. Hutchinson, 22 F.3d 846, 852 (9th Cir.
1993); United States v. Metzger, 778 F.2d 1195, 1202-03 (6th Cir. 1985);
United States v. Herrera-Britto, 739 F.2d 551, 552 (11th Cir. 1984) (per
curiam). Thus, the admission of the CNER in the criminal trial did not violate
Ventura's Sixth Amendment rights.
B. Sufficiency of evidence challenge
28

Ventura next assails the government's proof of entrance onto property reserved
by the Navy. Ventura made these challenges in a motion for judgment of
acquittal under Federal Rule of Criminal Procedure 29. A Rule 29 motion will
be denied "unless the evidence, viewed in the light most favorable to the
government, could not have persuaded any trier of fact of the defendant's guilt
beyond a reasonable doubt." United States v. Hernandez, 218 F.3d 58, 64 (1st
Cir. 2000) (quotation omitted), cert. denied, 531 U.S. 1103 (2001). We review
the district court's denial of the motion de novo. United States v. FrigerioMigiano, 254 F.3d 30, 33 (1st Cir. 2001).

29

Ventura argues that her unauthorized presence on the beach near the live
impact area does not violate 18 U.S.C. 1382 because the statute requires
proof of both ownership and control of area in question. Although defendant
concedes that the Navy owned and controlled the area up to the mean high-tide
line of the beach, she maintains that the area seaward of that line was
essentially fair game for her and the other protesters because Congress has
recognized Puerto Rico's jurisdiction over its beaches, see 48 U.S.C. 747-49.
She argues further that, because the evidence at trial established only that she
was arrested on the beach -- but not specifically landward of the mean high-tide
line -- her conviction cannot be sustained.

30

As an initial matter, and despite the defendant's protestations to the contrary,

we conclude that "[g]overnment ownership of the property in question is not a
requisite to violating Section 1382." United States v. Allen, 924 F.2d 29, 31 (2d
Cir. 1991) (emphasis added) (citing United States v. McCoy, 866 F.2d 826,
830-32 (6th Cir. 1989)).

31

In Allen, the Second Circuit addressed this issue in the context of several
defendants charged with violating 1382 by swimming alongside a docked

Trident nuclear submarine. In that case, the defendants argued that they could
not have violated 1382 because "they never intended to, and in fact did not,
penetrate the boundary of the naval reservation . . . but rather only the 'security
zone' of the waters surrounding that reservation." Id. at 30. The Allen court
held that "entering the security zone is entering the naval reservation and is a
violation of Section 1382." Id. The waters' designation as part of a security
zone in accordance with federal regulations was sufficient to invest the Navy
with "exclusive rights to occupy [the] area." Id.
32

The holding of the Second Circuit in Allen echoes that of the Ninth Circuit in
United States v. Mowat, 582 F.2d 1194 (9th Cir. 1978), where the court stated
that "even if the Navy did not possess a fee simple absolute title to the Island of
Kahoolawe, the maintenance of the 'naval reservation' there suffices to support
the convictions under 18 U.S.C. 1382." Id. at 1208. In accord with these
courts, we hold that, when the government does not own the land, 1382
requires only that the government demonstrate either a possessory interest in, or
occupation or control of, the area reserved by the military.

33

Here we apply the occupation-and-control test and conclude, in agreement with

the district court, that the government demonstrated that the area beyond the
mean high-tide lines is under the occupation and control of the Navy for
purposes of 1382. Puerto Rico's jurisdiction over the shoreline was
established subject to the control of the United States. Thus, a large swath of
area extending beyond the shoreline of the beach was permissibly designated as
part of a "danger zone" by federal regulation. See 33 C.F.R. 334.2,
334.1480. These regulations allow the Navy to "occupy and control" these
areas, and there was adequate testimony at trial demonstrating that the Navy
has in fact exercised this power. The Navy has continuously used the adjacent
area as a live impact zone for live-fire artillery and bombardment exercises and
has continuously patrolled the beach for possible intruders. Furthermore,
regulations establish that Camp Garca is a "closed" base, meaning that the
public may not enter without permission of the commanding officer. See 32
C.F.R. 770.35-770.40. The evidence therefore permitted the district court,
acting as the fact-finder, to conclude beyond a reasonable doubt that Ventura
had violated 1382.

34

C. Use of Special Assistant U.S. Attorneys General

35

Finally, Ventura argues that the district court erred by not disqualifying Navy
officers from serving as the prosecuting attorneys. Before trial, Ventura filed
motions seeking to disqualify United States Navy officers from prosecuting the
case. She argued that the Navy officers, appointed as Special Assistant United

States Attorneys to prosecute the case, had an institutional conflict. More

specifically, she avers that the ongoing controversy between the Navy and local
residents over the live bombing exercises at Camp Garca prevented Navy
personnel from serving as disinterested prosecutors. The district court denied
Ventura's motions, and the government was represented at trial by Navy
officers.
36

We addressed the identical argument in United States v. Silva-Rosa, No. 011347, slip op. at 4-6, 2001 WL 1597802 (1st Cir. Dec. 19, 2001), and need not
recite the precise analysis set forth in that opinion. Suffice it say, however, that
the defendant's argument must be rejected on the same rationale.
III. CONCLUSION

37

For the reasons stated above, we affirm.

Notes:
*

Of the Eleventh Circuit, sitting by designation.

Because we agree that the CNER was properly admitted as self-authenticating

under Rule 902(1), we need not address defendant's contention that the
certification is not a self-authenticating domestic public document not under
seal within the meaning of Rule 902(2).

Ventura does not appear to challenge introduction of the CNER on the basis
that the government failed to demonstrate that LC Pagan was unavailable to
testify. Cf. Barone, 114 F.3d at 1302 (noting that under certain circumstances
the Confrontation Clause requires the government to demonstrate the
declarant's unavailability).

"Where the evidence is admitted under a 'firmly rooted' hearsay exception,

reliability may be inferred without more." Barone, 114 F.3d at 1301 (citing
Roberts, 448 U.S. at 66). "Admission under a firmly rooted hearsay exception
satisfies the constitutional requirement of reliability because of the weight
accorded longstanding judicial and legislative experience in assessing the
trustworthiness of certain types of out-of-court statements . . . ." Wright, 497
U.S. at 817.